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by Martha M. Hamilton, AARP Bulletin, September 24, 2009
It’s easy enough to understand why most of us are reluctant to write a will. Who wants to confront mortality?
I finally drafted a will about 10 years ago after my lawyer sister insisted. I realized that if I were to die before my pending divorce was final, everything would go to my soon-to-be-ex-husband unless my will said otherwise, and that turned out to be just the motivation I needed.
Now things have changed, and I really need to pull together a new will. It has been on my to-do list for more than two years.
And yet, I haven’t done it, and I suspect I’m not alone. So I turned to Edward L. Weidenfeld, a highly respected lawyer whose specialty is estate law, to ask how people can get themselves motivated to prepare for the inevitable. And what he said was persuasive.
First, when you die there is going to be “a division of your worldly goods, and if you don’t say with some precision how you want it done, the court’s going to apply standards that may not reflect your wishes, and be more expensive,” he said.
But, more important, he added, “it’s really the caring thing to do. Just like you don’t like a houseguest who leaves everything in a mess, most people really don’t want to pass on a mess for their family.”
One legacy you don’t want to leave behind is a family fighting over your assets.
Stop the fighting in advance
“If there is likely to be some question in the family over who gets what,” said Weidenfeld, it’s smart to either specify who inherits what or set up a system for how things should be distributed. The system might be as simple as having surviving children draw numbers and each of them taking one item in turn. “You want to avoid turning these moments of grief into family battles,” he said.
“One of the many lessons we’ve learned is that in many families, when the loss occurs, it brings back all the sibling rivalries and ‘who did Mommy love best.’ And she’s not there to say, ‘I loved you all. Stop fighting.’ ”
Then he raised an issue I hadn’t thought about: “It’s very important to plan for death, but equally important to plan for disability. If you’re doing good estate planning, your lawyer is not only going to talk about how to distribute assets if you die, but also about what to do with your assets if you are disabled.” You need to think about whom you want to have financial power of attorney, and whom you want to have medical power of attorney.
And there’s so much more. What happens to the assets if the person you want to leave them to has died? Do you need to set up a trust so that a profligate nephew can’t lose it all in bad investments?
Now that I’m convinced, the next question is, where do you start?
What a lawyer does
“You’ve got to begin with some kind of a balance sheet,” said Weidenfeld. This would include a summary of your assets—real estate, cars, investments, the old oak cabinet that your cabinetmaker grandad built—and also any entitlements such as pensions and annuities.
The next step, in Weidenfeld’s opinion, is to find a lawyer. While that’s just what you would expect someone who practices estate law to say, I think it’s valid. Although there are many online sites where you can prepare a will at lower cost, in a situation as fraught and as complicated as this one, I think it pays to spend the money on someone who is thoroughly familiar with the territory and who can help guide you through the emotional minefields.
I recently heard a story that underscores this point. It was the case of a 70-year-old man, a loving son who lived near his mother and who was her principal caretaker, taking her out to dinner every week and doing much more as well. When he did his will online, he didn’t think about the prospect that he could die before she did. But that’s just what happened. Because there was no one sitting at his side to raise that possibility, he made no provision for her care in the event he died first. Instead, he left everything to his girlfriend, which he probably wouldn’t have done if he had foreseen what could happen.
I’m not a fan of turning to lawyers in every situation. In divorces, for instance, it can be more cost-effective to turn to a financial planner. And in many situations, online help or just common sense can be enough.
For those who can’t afford a lawyer on their own, there is help available. Try LawHelp.org or the AARP Legal Services Network (1-866-330-0753 toll-free).
What an experienced lawyer can do is look at the interrelationships and raise questions, like what you want done if one of your children predeceases you. “You may want to leave something to grandchildren, or you may want to put it in a trust, or you may want to leave it to the [child’s] spouse because you have such a warm, close relationship,” Weidenfeld said. “This process and these decisions require human intelligence, and, as good as artificial intelligence is, it’s not that good.”
Martha M. Hamilton writes a regular column for Bulletin Today on retirement and financial issues.
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